Houston Can't Enforce Dirty Air Ordinance: Court

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By Nushin Huq

April 29 — Houston does not have the authority to enforce its air pollution rules or collect registration fees from polluters, the Texas Supreme Court said April 29.

While the city can incorporate the Texas Commission on Environmental Quality (TCEQ) rules on emission standards outlined in the Texas Clean Air Act into its city ordinance, only the TCEQ has the authority to enforce those rules, the court said in an opinion that reversed a lower court opinion. This means that Houston will not be able to enforce its own air pollution ordinance and will have to rely on state regulators for enforcement efforts.

State law limits a municipality's enforcement power to enforcement “not inconsistent with” TCEQ rules or orders. The TCEQ may decide that an emissions violation needs only an administrative or civil remedy. A city ordinance that authorizes criminal prosecution for companies that violate it is inconsistent with state regulatory authority, the court said.

A city ordinance that requires polluting facilities to register with the city and pay a registration fee also is unlawful, the court said, explaining: “A city may not pass an ordinance that effectively moots a [TCEQ] decision, which is precisely the effect of the City's registration requirement in this case.”

Environmentalists Say Clean Air Needs City Efforts

There isn't enough manpower and resources to effectively regulate industry in Texas, and this decision further diminishes those resources by not allowing the city to help with enforcement, Adrian Shelley, executive director of Air Alliance Houston, told Bloomberg BNA. The environmental group filed a brief supporting the city's ordinance.

“There is likely to be more pollution as a result of that, which will cause public health to suffer,” Shelley said.

“I'm not sure what's left,” he added. “It was the enforcement ability that was key to what the city was doing.”

Houston's Response

Donna Edmundson, the Houston city attorney, said the court's decision “will not dampen the City’s efforts to assist the Texas Commission on Environmental Quality in abating air pollution.”

“The City will employ other legal mechanisms, including those allowed under the Texas Clean Air Act and Water Code, to monitor and take action against those who pollute the City’s air in violation of State and Federal air pollution control laws and regulations,” the city attorney added in a statement.

Ordinary Reasons for Ordinance

The controversy over the ordinance stems from a change to it in 2007 to cover any emitting facilities, whether they fall under TCEQ jurisdiction or not—that is, large industrial users as well as small businesses such as dry cleaners. Previously, the ordinance only covered small facilities. In addition, every facility would have been required to register with the city and pay a fee. Facilities that failed to do that would be in violation of the city ordinance. The city of Houston had revised its ordinance to incorporate TCEQ rules because it felt that state regulators had limited resources to enforce pollution standards (172 DEN A-5, 9/4/15).

The BCCA Appeal Group, whose members consist of owners and operators of industrial facilities in the Houston area such as Exxon Mobil Corp. and Dow Chemical Co., asserted that the ordinances were preempted by state law. Only the TCEQ may enforce emissions limits, and the ordinance is interfering with the commission's ability to enforce its standards the way it best sees fit, the group argued. Texas Governor Greg Abbott (R) filed a brief supporting the industry group.

To contact the reporter on this story: Nushin Huq in Houston at nhuq@bna.com.

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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